The Evolution of the Doctrine and Practice of Humanitarian Intervention

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The Evolution of the Doctrine and Practice of Humanitarian Intervention, Kluwer Law International, The Hague 1999, 325 pp. ISBN 90-411-1160-3.

F.K. ABIEW,

By a twist of irony, by the time this book had left the printing-house, it had already turned 'out-of-date' as its publication coincided with NATO's launching of the Kosovo campaign, widely seen as one of the most controversial and catalytic examples of humanitarian intervention in recent times. On the other hand, unfortunate as this may be, it also shows the unfailing topicality of the subject and the appositeness of the author's undertaking. Abiew's monograph, which grew out of his doctoral dissertation submitted to the University of Alberta in 1997, traces the evolution of the troubled law of humanitarian intervention by reference to two benchmarks, the adoption of the UN Charter and the end of the Cold-War. International legal theory and state practice are thus examined in three distinct periods, corresponding to what the author describes as the concept's three historical stages of evolution: its initial development and acceptance into the pre-Charter international legal order; its dialectical relationship with enshrined notions of state sovereignty and non-intervention in the post-Charter era; and finally, its normative consolidation after the demise of the Cold-War and the increasing pro-activeness of centralized and de-centralized actors in the field of human rights and democratic governance. In chapter 1, Abiew inquires into the doctrinal origins and early practice of humanitarian intervention arguing that this 'has long been a routine feature of the international system and has coexisted with the development of state sovereignty' (p. 30). After recalling the ideological foundations of the concept in legal theory - laid in ecclesiastical pleas for Christian solidarity by seventeenth-century theologians or more secularized calls of nineteenth-century publicists for assistance to oppressed people struggling against tyranny - he traces the early instances of humanitarian intervention in inter-state relations ofthe nineteenth-century, mostly military expeditions authorized by the Concert of Europe to save Christian populations in the Balkans from Ottoman oppression and persecution. While admitting that 'the precedents show in some instances a propensity to abuse the doctrine, or the presence of mixed motives in undertaking state action', the author maintains that 'these instances of misapplication of the doctrine do not make it devoid of its inherent value as a safeguard for protection of humanity' (p. 58). For Abiew, doctrinal writings and state practice suggest that the theory of humanitarian intervention was ingrained into the notion of state sovereignty since the inception of the Westphalian state system, and therefore its customary nature cannot be doubted. The doctrine is based on the assumption that sovereign jurisdiction is conditional upon compliance with

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minimum standards of human rights and thus sovereign authority is not immune from state action to protect humanity. Chapter 2 looks into armed interventions justified on humanitarian grounds in the post-1945 period and examines their legitimacy in the light of evolving norms of state sovereignty and non-use of force codified in the UN Charter. The author argues that, even though the postwar international order was designed to glorify the principles of sovereign equality and non-intervention, modern practice demonstrates an increasing internationalization of human rights issues calling for a reconsideration of traditional assumptions underlying the non-intervention principle. The remarkable development of human rights laws and related institutional arrangements has prompted a re-reading of the UN Charter enabling to reconcile humanitarian intervention with the Charter philosophy. For one thing, Article 2(4) should not be construed as an absolute proscription of the use of force so that an intervention for human rights purposes may not be deemed to fall within the prohibition as long as it is not directly aimed against the territorial integrity or political independence of a state. Secondly, Article 2(7) makes no good defence against the right of humanitarian intervention as it is now increasingly accepted that human rights abuses are no longer matters essentially within the domestic jurisdiction of a state. The review of relevant state practice, however, is selective, and, if anything, succeeds in demonstrating the lack of clarity which has always enveloped state claims postulating new exceptions to the prohibition of Article 2(4) or permissive interpretations of Article 51 of the Charter. By amalgamating operations undertaken or justified on various grounds other than purely humanitarian concerns, such as the right of self-defence (Vietnam's intervention in Cambodia, 1978, Indian intervention in East Pakistan, 1971 or the Tanzanian intervention in Uganda, 1979), the right to protect nationals abroad (US intervention in Dominican Republic, 1965 - but no mention of the interventions in Grenada or Panama), or the right to intervene with the consent of a foreign government (Belgian intervention in Congo, 1964), Abiew provides no solid proof for his assertion that 'the customary international law right of humanitarian intervention has survived the UN Charter.' In certain cases, the author contradicts himself by recognizing, for instance, that 'the primary aim of the intervening forces was to rescue their own nationals' (p. 104), that 'it is difficult to discern whether in fact the objective was merely humanitarian' (p. 131), or that 'despite the self-interested nature of the action, this intervention ultimately achieved the task of protecting human rights' (p. 120). Yet, he concludes unreservedly, if not uncritically: 'Analysis of state practice in the period under consideration showed the existence of the principle of humanitarian intervention in situations of egregious violations of human rights. The examples of state practice discussed here demonstrate that states believe the right of unilateral humanitarian intervention is available to them as an option grounded in either the Charter or customary international law. Opinio juris follows from the articulation of the rule that human rights are a matter of international concern and that use of force to remedy the most serious human rights violations is not prohibited in international law' (pp. 133-134).'

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In chapter 3, Abiew tells the story of those humanitarian-motivated operations occurring after the end of the Cold-War and the reactivation of the Security Council's powers in matters of collective security. The argument remains clear throughout, yet worryingly unqualified; it is encapsulated in these words: 'sovereignty is not incompatible with humanitarian intervention. Sovereignty connotes responsibility, and thus when human rights violations occur on a massive scale either arising from governmental acts or in situations of internal conflict, intervention is justified to protect those rights.' If this is to suggest that invoking state sovereignty holds no good against a Security Council decision determining the existence of a threat to/breach of the peace, the matter allows of no controversy. Referring, for instance, to Security Council Resolution 688 and the international response to the 1991 humanitarian crisis in northern Iraq, Abiew alludes to the rising awareness 'that sovereignty and nonintervention could no longer shield genocidal and other repressive acts which are themselves forbidden by international law and treaties' (p. 156), but is this not tantamount to saying that the domestic jurisdiction limitation ceases to apply when it comes to enforcement action? Similarly, the UNmandated operation in Somalia may well have raised complex questions of political expediency, effectiveness and even accountability, but is free from doubt as to its constitutional basis. Seeking, therefore, to establish the moral grounds justifying UN enforcement action is of little interest from a legal perspective. In this sense, it is difficult to understand the author's conclusion that 'Resolution 794 was an explicit statement of the right of intervention in response to a humanitarian crisis' and that 'it represents the clearest articulation of the principle of humanitarian intervention' (p. 175) - as if the Security Council's legal capacity to decide coercive measures were ever in question. At times, Abiew's argument consists in forcing an open door, for, maintaining that 'the case for humanitarian intervention by the UN is grounded in the duty and responsibility of the Security Council to take whatever measures are necessary to maintain international peace and security' (p. 144) is to state the obvious. In sum, giving the account of the moral, political or factual parameters which led the Security Council to the adoption of Resolutions 688 (Iraq), 770 (Bosnia), 794 (Somalia), 929 (Rwanda) or 940 (Haiti) may well be instructive in terms of lessons to guide future action, but remains tangential to the essence of the legal quandary: what if the UN fails to mandate a collective response? Abiew concludes that 'post-Cold War practice suggests that the international community is ready to implement a broader conception of humanitarian intervention' (p. 221), without venturing any suggestion as to how such an expanded notion of humanitarian intervention might be legally conditioned or circumscribed. In chapter 4, Abiew takes on to demonstrate the emerging consensus on the legitimacy of humanitarian intervention in light of developments in the post-Cold War period. Reviewing scholarly writings, government policies, the role of the NGO community and the views of other institutional actors, he articulates his argument around three main propositions: first, there is a notable shift in the manner states approach the oncebelieved sacrosanct principle of national sovereignty and a growing tendency to restore notions of responsibility to state sovereignty. Secondly, through the consistent pattern of action followed in the crises in Iraq, the former Yugoslavia, Somalia, Haiti, Rwanda or Liberia, the UN Security Council has established a linkage between large-scale human

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rights violations and threats to, or breaches of international peace and security making possible the initiation of enforcement action under Chapter VII of the Charter. Thirdly, there is need to devise a comprehensive legal framework setting out the conditions and limits for collective action in face of massive or widespread violations of human rights. Overall, this is a study combining keen reasoning and extensive legal research. It is well-structured and makes interesting reading. The author should also be given credit for having carefully kept the historical narration and the review of the vast legal literature within reasonable limits. In the opinion of this reviewer, however, the work suffers from two major shortcomings: first, regarding its approach, the book defines humanitarian intervention in misleadingly broad terms and proceeds to address the legal merits, precedential value and effects of much-differing operations - ranging from 'Entebbe-type raids' to UN peace-enforcement missions — as if they were part of the same legal problematique. Secondly, with respect to substance, the book fails to elaborate on the legal parameters regulating the exercise of the alleged right of humanitarian intervention. The reader will vainly search for answers, or reflections, on core questions such as: how to evaluate the purity of motive or contain the risk of abuse; can a modicum of objectivity be established in fixing the 'threshold' of unbearable human rights abuses or the 'ceiling' of permissible action; should anticipatory humanitarian intervention be endorsed, not to halt widespread violence but to prevent 'imminent' atrocities; 2 how 'collective' an intervention should be before one could claim that it is carried out 'in the common interest'; 3 can any institutional safeguards be devised to ensure that a military operation is launched only after exhaustion of non-forcible remedies and that it is terminated as soon as the humanitarian tragedy has been averted; what levels of collateral damage can 'moral necessity' and 'mission accomplishment' justify, and should an accountability regime be envisaged for the cases of disproportionate use of 'humanitarian force'; and ultimately, how far can one go in recalibrating the Charter prescriptions on use of force and the Security Council powers without surrendering to arbitrariness and anarchy?4 If no satisfactory answers can be framed to these questions, then it is preferable to tolerate humanitarian intervention J&ute de mieux as nothing more than a legal anomaly of ephemeral legitimacy at best, than institutionalize what may well become the epitaph of the Charter's collective security blueprint. 5 In Kofi Annan's words, 'the moral rights and wrongs of this complex and contentious issue [NATO's use offeree in Kosovo] will be the subject of debate for years to come, but what is clear is that enforcement actions without Security Council authorization threaten the very core of the international security system founded on the Charter of the United Nations.' 6 To conclude, The Evolution of the Doctrine and Practice of Humanitarian Intervention is a knowledgeable essay on the complexities of humanitarian war-making, though it is feared that the last year's episode in the Balkans and the mushrooming literature thereof, have unmistakably taken the debate much further already. George P. Politakis, LL.M., Ph.D. International Labour Office

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1. Compare the view of Ian Brownlie who, in the context of the ICJ proceedings concerning Legality of Use of Force, maintained that 'humanitarian intervention has no legal authenticity whatsoever', that 'there is no evidence of such a "doctrine" in customary international law', and that 'reliable authority covering a period of thirty years has failed to recognize a principle of humanitarian intervention'; see Request for the Indication of Provisional Measures, Oral Pleadings, CR 99/14. 2. On this, see the critical remarks by J.I. Charney, 'Anticipatory Humanitarian Intervention in Kosovo', 93 AJIL (1999) p. 841. 3. See, for instance, N. Krisch, 'Unilateral Enforcement of the Collective Will: Kosovo, Iraq, and the Security Council', 3 Max Planck Yearbook of United Nations Law (1999) p. 87, and L. Henkin, 'Kosovo and the Law of Humanitarian Intervention', 93 AJIL (1999) pp. 826-827. 4. As Judge Higgins has recently cautioned, 'we are witnessing not mere imaginative lawyering within the UN to achieve a desirable end and alleviating the suffering, but the passing outside of the UN altogether of the decision making powers reserved under the Charter to the Security Council. As we wrestle with this dilemma, the long term implications may be considerable'; see R. Higgins, 'International Law in a Changing International System', 58 Cambridge Law Journal (1999) p. 94. 5. As it was noted in relation to the war in Kosovo, 'NATO's action in Kosovo is thus best be seen as an exception from which may be derived a few useful lessons for the future rather than as the future itself; see T.M Franck, 'Lessons of Kosovo', 93 AJIL (1999) p. 859. 6. See Annual Report of the Secretary-General on the Work of the Organization, A/54/1 of 31 August 1999, para. 66. And elsewhere, referring to the dilemma of so-called 'humanitarian intervention', he observed: 'on the one hand, is it legitimate for a regional organisation to use force without a UN mandate? On the other, is it permissible to let gross and systematic violations of human rights, with grave humanitarian consequences, continue unchecked? The inability of the international community to reconcile these two compelling interests in the case of Kosovo can be viewed only as a tragedy'; interview published in The Economist, 18 September 1999.

On 1 November 1998, the system for the protection of human rights in Europe underwent some significant changes. Pursuant to Protocol No. 11 to the European Convention on Human Rights, a full-time European Court ofHuman Rights was established. The familiar tandem of Commission and Court was thus replaced by a single body. As a consequence, the individual applicant was granted full and direct access to the Court, on an equal footing to the 'High Contracting Parties'. In addition, the power of the Committee of Ministers of the Council of Europe was restricted, as far as the Convention is concerned, to monitoring state compliance with the Court's judgments. As it was decided that the full-time Court was to be composed of newly-elected judges, the members of the 'old' Court lost their position quite abruptly. The same was true for the Commission, although it continued to operate until 1 November 1999 in order to complete the examination of those cases which it had already declared admissible before the entry into force of Protocol No. 11. Some former judges and Commissioners